Opposition Brief — Los Angeles Herald Examiner v. San Francisco-Oakland Newspaper Guild
Supreme Court brief1968
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LIBRARY Supreme Court, U.S.
~UPREME COURT, U. S. FILED
1970
IN THE E ROBERT SEAVER, CLERK
Supreme Court of the United States
Octoser Term, 1970
No. 409
THE Boarp or Epucation or THE LITTLE Rock
Scnoot District, et al.,
Petitioners,
—V.—
Detores Cuark, e¢ al.,
Respondents.
BRIEF IN OPPOSITION TO CERTIORARI
JoHN W. Wa.LkeER
Waker, RorenBerry, Kap.an,
Lavey anp Ho.iurncswortH
1820 West Thirteenth Street
Little Rock, Arkansas 72202
JACK GREENBERG
James M. Nasait, III
Norman J. CHacHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Respondents
nd
INDEX
PAGE
Citation to Opinions Below 1
Jurisdiction ............. on
Questions Presented ah a ae
Statement .
The Little Rock School District
The Oregon and Parsons Plans .............. 9
Development of the Plan Rejected by the Court
of Appeals .... woe |
Alternatives Available to the District 16
haa i OT EE TIN SETS 19
ConcLusion ...... ecient ainatptibeabibeabientetndsetitdel sais 26
APPENDIX :—
Defendants’ Exhibit 24 0c ccceeeceeeccoo la
Defendants’ Exhibit 25 0 2a
Defendants’ Exhibit 8 0... cccccccccccccseeeeeccccs 4a
Defendants’ Exhibits F and @ ...... 6a
POINTE TE sedis Riticlen sien seen ae 8a
Chit &
Ba SO eet DE AIS
’ Bla RE DP Isha Ne
il
TABLE oF CASES
Aaron v. Cooper, 143 F. Supp. 855 (B.D. Ark. 1956),
aff'd 248 F.2d 361 (Sth Cir. 1957) ; 2 Race Rel. L. Rep.
934-56; 988-41 (E.D. Ark. 1957), aff'd 254 F.2d 808
(Sth Cir, 1958); 156 F. Supp. 220 (E.D. Ark. 1957),
aff'd sub nom. Faubus v. United States, 254 F.2d 797
(Sth Cir.), aff'd 358 U.S. 1 (1958), 261 F.2d 97 (8th
Cir. 1958); 169 F. Supp. 325 (.D.- Ark. 1959) _..1, 2, 4,5
Aaron v. Cooper, 163 F. Supp. 138 (E.D. Ark. 1958),
cert. denied 357 U.S. 566 (1958) was reversed 257
F.2d 38 (sth Cir. 1958), aff'd sub nom. Cooper v.
MI I a a aan dadecs 4
Aaron v. McKinley, 173 F. Supp. 944 (E.D. Ark.),
aff'd sub nom. Faubus v. Aaron, 361 U.S. 197 (1959) 2,5
Aaron v. Tucker, 186 F. Supp. 913 (E.D. Ark. 1960),
rev'd sub nom. Norwood v. Tucker, 287 F.2d 798
cass setenecnicandnsninnesatcarscensh 2,9
Alexander v. Holmes County Board of Education, 396
SC ne ae 24
Andrews v. City of Monroe, No. 29358 (5th Cir., April
ON a goettinas a SOE SiN en pao ae oop OTERO 21
Bivins v. Bibb County Bd. of Educ. and Thomie v.
Houston County Bd. of Educ., No. 29,121 (5th Cir.,
Pam 3 dere? ae 5 EA Ra ORO OOO ok NOT 20
Brewer v. School Board of the City of Norfolk, Va.,
No. 14,544 (4th Cir., June 22, 1970) cert. denied 38
USinwW. meee taeme Se, 3970) | on 20, 21
Brown v. Board of Education, 347 U.S. 483 (1954) ....4, 24, 26
Brown v. Board of Education, 349 U.S. 294 (1955) ... 4
Byrd v. Board of Directors of Little Rock School Dist.,
Civ: No. LB 65-C-142 (E.D. Ark. 1965) .................... i)
Caddo Parish School Board v. United States, 389 U.S.
940 (1967) ...... siren eee 23
PAGE
Christen +. Board of Education of Strong, Civ. No.
EDG405 (W_D. pore 4g ISR 24
Chak wr. oe of Edueetion of Little Bock Schoo]
District, 369 F 2d 1 (Sth Cir. 1966). 1, 2, 5, 8
Comper vr. pene 22% TS. 1 (1958) mathcihanbiisincinia toca 4
Davis +. Board of School Comzr’s of Mobile, No. 436
OF BR sabbsheidaimasaoaes 22
Davis +. Seaoel Dietrie of ity of Pontiac, 309 F. Sue.
142 (ED. Mich 1979) ___ Hise cotton SAAN 25
Elis +. Buerd a wae Inetruction of Orange County,
$23 F224 a Kf: a | ENS ee 21
= eves +. Boerd of Baue of North Little Bock, C. A.
». LB64-151 (ED. Ark) SRE AE 20
Green +. Countr Schoo] Board of ew Kent County,
Va, 21 US 439 (1968) Bs hy ie |
Heary +. Clarksdale Mumucipze] Seperate School Dis-
L, MG P26 G2 (Sh Cir.) cert denied, 296 U.S.
3 ISG) _ 22
Hilson +. Ourte, No. 23691 (5G, Cir, April 23,1970) _. 20
Jackson +. Marvel] Sauap] Llistrict Xo. 22, 416 F.2d 380
Ce WD) 22
Keller +. Metropolitan © outs Board of Educ. of Nash-
ville, Cor. No. Die | WD. Tem, July 16, 1970) beets 23
Mannung: +. Boerg Public Instruction of Hillsbor-
ong Couutr. Xo. 2642 (Sth GH Cir. May 11, 1970) _. 29
Monarve +. Buerd of Comm'rs of Jackson, Xo. 19720
Sm Cor. June 29, 1970) ao Se
tA hedge:
Actes aE A
Pel Sn ee eee
eet re ee ee eC |
iv
PAGE
Northeross v. Board of Education of the Memphis City
a, Ge Sl ee CT sree 20
Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3
RINNE? Whodisedarsskawideneobasaseuiia sapeidubaidandsacemnuess 8
Swann vy. Charlotte-Mecklenburg Bd. of Educ., No.
14,517 (4th Cir., May 26, 1970), cert. granted on
other issues, 38 U.S.L.W. 3522 (June 29, 1970) ........ 21, 22
Swann v. Charlotte-Mecklenburg Bd. of Educ., No.
14,517 (4th Cir., May 26, 1970) cert. granted on
other issues, 38 U.S.L.W. 3522 (June 29, 1970) ........ 21, 22
United States v. Board of Educ., Independent School
Dist. No. 1, Tulsa, No. 338-69 (10th Cir., July 28,
RUD seinsdeniiy tac ciincih ing aeaeienakasahaanensayaialiaaemeentedainins 20
United States v. State of Georgia, No. 29067 (5th Cir.,
UE Sis BUPOTEE etadasctcdn corte ceeceenneietia 20
State STATUTES
Fair Housing Act of 1968, 42 U.S.C.A. §$3601 et: seq.
CR, BUTTE subdacbnn lade eitaeceacin eanindencdeecaseeaimentiee 25
OtrHER AUTHORITIES
Abrams, Forbidden Neighbors, 233 (1955) .........0.......... 25
Racial Isolation in the Public Schools, A Report of the
U.S. Commission on Civil Rights 201-02, 254, Legal
I TE RI Kec iidinccnepcnadiiddeiauanicaeniandesesiocinns 25
Race and Place—A Legal History of the Neighborhood
School, Weinberg, (U.S. Gov’t Printing Office, Cat-
alogue No. F'S 5.238 :38005, 1967) ..................c.cccscseeeseee 19
Weaver, The Negro Ghetto, 71-73 (1948) -...00.000.. 25
In THE
Supreme Court of the United States
OctoBer Term, 1970
No. 409
THE Boarp or Epucation or THE Littte Rock
Scuoon District, et al.,
Petitioners,
—V.—
Detores Cuark, et al.,
Respondents.
BRIEF IN OPPOSITION TO CERTIORARI
Citation to Opinions Below
The opinion of the Court of Appeals issued May 13, 1970,
of which review is sought by Petitioners, is not yet re-
ported; it is appended to the Petition at pp. A-1 to A-25.
The opinion of the district court was unreported and
appears as an Appendix to the Petition, pp. A-27 to A-57.
‘Prior reported opinions in this case and its predecessor
action’ appear as follows: Aaron v. Cooper, 143 F. Supp.
855 (E.D. Ark. 1956), aff'd 243 F.2d 361 (8th Cir. 1957)
.
’
*The district court and the Court of Appeals recognized that
Clark v. Board of Educ. of Little Rock was but the continuation
of the original Aaron v. Cooper suit brought in 1956 to desegregate
the Little Rock public schools. See Joint Appendix below, at p. 7;
Appendix to Petition for Writ of Certiorari, pp. A-2 to A-3.
~
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2
2 Race Rel. L. Rep. 934-36; 938-41 (E.D. Ark. 1957), aff’d
254 F.2d 808 (8th Cir. 1958); 156 F.Supp. 220 (E.D. Ark.
1957), aff'd sub nom. Faubus v. United States, 254 F.2d
797 (Sth Cir. 1958) ; 163 F. Supp. 13 (E.D. Ark), rev’d 257
F.2d 33 (8th Cir.), af’'d 358 U.S. 1 (1958); 261 F.2d 97
(Sth Cir. 1958) ; 169 F. Supp. 325 (E.D. Ark. 1959); Aaron
v. McKinley, 173 F. Supp. 944 (E.D. Ark.), aff’d sub nom.
Faubus v. Aaron, 361 U.S. 197 (1959); Aaron v. Tucker,
186 F. Supp. 913 (E.D. Ark. 1960), rev’d sub nom. Nor-
wood v. Tucker, 287 F.2d 798 (8th Cir. 1961); Clark v.
Board of Educ. of Little Rock, 369 F.2d 661 (8th Cir. 1966).
Jurisdiction
The jurisdictional prerequisites are adequately set forth
in the Petition for Writ of Certiorari.
Questions Presented
Respondents are unable to agree that the five “Questions
Presented” in the Petition for Writ of Certiorari at pp.
4-5 appropriately describe the issues posed by this litiga-
tion. Each of the “«)uestions Presented” described by Peti-
tioners assumes “fairly drawn attendance zones” although
respondents contended, and the Court below found, that
in the context of the forms discrimination and school seg-
regation took in Little Rock, the school board’s zoning plan
was not fairly or constitutionally drawn.
The following statement of the Questions Presented is
adapted from Respondents’ brief in the Court of Appeals:
1. Does a school district formerly segregated by law
fulfill its constitutional obligation to convert to a uni-
tary system by adopting an assignment plan which
conforms to racial residential patterns and which fails
3
to appreciably alter the pattern of racially separate
school attendance characteristic of the dual system?
2. Can such an assignment plan be justified on the
ground that it is a “neighborhood school” plan where
the school district formerly assigned students to
schools outside their “neighborhoods” in order to pre-
serve segregation?
3. Can such an assignment plan be justified on the
ground that changing the Segregated attendance pat-
terns in the public schools of the district may require
the expenditure of funds to provide pupil transporta-
tion?
Statement
The Petition for Writ of Certiorari does not contain a
reasonably detailed statement of the facts, the pleadings,
or the desegregation plans presented to the district court;
petitioners do not substantially rely upon the facts of rec.
ord as grounds for review. Yet the decision of the Court
of Appeals is founded upon an assessment of the practical
effects of the zoning plan in the light of the history of
desegregation or the lack thereof, in this district since
1954, and not upon abstract discussions of “racial balance.”
See Appendix to Petition for Writ of Certiorari, pp. A-13,
to A-16. Accordingly, and in view of the lengthy record,
we think it appropriate to make available to the Court the
following detailed recitation of the facts adapted from our
Brief in the Court of Appeals.’
* We have also reprinted as an Appendix to this Brief some of
_ the trial exhibits reprinted in our Court of Appeals brief. The
parties agreed that the joint Appendix would contain only the
pleadings and the transcript but that either party might put before
the Court of Appeals in the form of an appendix to its brief, such
trial exhibits as it desired.
+
The current proceedings* were formally commenced in
Juy 1968 with the filing of a Motion for Further Relief
* After Brown v. Board of Educ., 347 U.S. 483 (1954), the Little
Rock school board adopted a plan of very gradual integration.
When that plan was not implemented, Negro students and their
parents brought suit in 1956. The initial plan, calling for complete
desegregation by 1963, was approved by the district court that
year, Aaron v. Cooper, 143 F. Supp. 855 (E.D. Ark. 1956). The
Court of Appeals rejected arguments that more rapid desegrega-
tion should be required, in part for the reason that the first plan
had been voluntarily adopted by the school board even before the
second Brown decision (Brown v. Board of Educ., 349 U.S. 294
(1955)). Aaron v. Cooper, 243 F.2d 361 (8th Cir. 1957). Subse-
quently, when white parents obtained a state injunction to prevent
implementation of the plan in 1957-58, the district court restrained
compliance with the order of the Arkansas court and mandated
execution of the plan. Aaron v. Cooper, 2 Race Rel. L. Rep. 934-36,
938-41 (E.D. Ark. 1957), aff'd 254 F.2d 808 (8th Cir. 1958). The
Governor of Arkansas then took measures to prevent Negroes from
attending classes at the previously-white Central High School, in-
cluding the stationing of National Guardsmen with fixed bayonets
at the school with orders to prevent the entry of Negro students.
This conduct was enjoined in Aaron v. Cooper, 156 F. Supp. 220
7 D. Ark. 1957) aff'd sub nom. Faubus v. United States, 254 F.2d
7 (Sth Giz. 1938). However, intervention by federal troops under
‘eens soles of the President of the United States was required to
effectuate compliance with the district court’s orders and with
the Constitution. Cooper v. Aaron, 358 U.S. 1, 12 (1958).
After the conclusion of the 1957-58 school year, the board sought
to delay implementation of the plan for at least three additional
years because of the extent of white opposition to integration. The
district court’s order approving a delay, Aaron v. Cooper, 163 F.
Supp. 13 (E.D. Ark. 1958), cert. dented, 357 U.S. 566 (1958), was
reversed, 257 F.2d 33 (8th Cir. 1958), aff'd sub nom. Cooper v.
Aaron, 358 U.S. 1 (1958).
Pursuant to emergency measures passed by the Arkansas Legisla-
ture in special session, the Governor of Arkansas then ordered all
Little Rock high schools [the desegregation plan at that time ex-
tended only to the high school grades] to be closed indefinitely.
Thereupon, the board undertook to lease its high school buildings
to a segregated private school corporation. The district court denied
an injunction against the leasing of the facilities, but the Court of
Appeals reversed and required issuance of the decree, Aaron v.
Cooper, 261 F.2d 97 (8th Cir. 1958). However, Little Rock public
high schools remained closed during the 1958-59 school year, see
)
based upon Green v. County School Board of New Kent
County, Virginia, 391 U.S. 430 (1968) and companion cases.
In that Motion (A. da-l4a),* plaintiffs sought—and plain-
tiff-intervenors sought in their Complaint (see A. 27a-31a)
—an order requiring the Little Rock School District to
abandon its free choice plan of desegregation and to adopt
and implement a plan of desegregation which “promises
realistically” to convert now to a unitary school system.
Aaron v. Cooper, 169 F. Supp. 325 (E.D. Ark. 1959), until the
Arkansas school closing legislation was declared void by a three-
judge district court in Aaron v. McKinley, 173 F. Supp. 944 (E.D.
Ark. 1959) (per curiam), aff'd sub nom. Faubus v. Aaron, 361 U.S.
197 (1959).
The board then assigned pupiis during the 1959-60 school year
on the basis of regulations adopted by it pursuant to the Arkansas
Pupil Placement laws, which required consideration of a multitude
of factors other than residence (e.g., “the possibility of breaches of
the peace or ill will or economic retaliation within the community”).
An attack upon these laws was rejected by the district court,
Aaron v. Tucker, 186 F. Supp. 913 (E.D. Ark. 1960), but its judg-
ment was reversed in Norwood v. Tucker, 287 F.2d 798, 802 (8th
Cir. 1961), where the Court said, “[w]hile we are convinced that
assignment on the basis of pupil residence was contemplated under
the original plan of integration, it does not follow that the school
officials are powerless to apply additional criteria in making initial
assignments and re-assignments.” The board’s use of the pupil
piacement laws was “motivated and governed by racial considera-
tions,” id. at 806, said the Court, and the board’s “obligation to
disestabiish imposed segregation is not met by applying placement
or assignment standards, educational theories or other criteria so
as to produce the result of leaving the previous racial situation
existing as it was before.” Id. at 809.
The Clark plaintiffs in 1965 complained of continued manipula-
tion of the Pupil Placement laws to limit the movement of Negroes
into previously all-white schools. The district court so found. See
Clark v. Board of Educ. of Little Rock, 369 F.2d 661, 665 (8th
Cir. 1966). While the district court’s opinion in that case was being
prepared, the board determined to abandon the Pupil Placement
laws in favor of a “freedom of choice” plan, subsequently approved
by the district court and by the Eighth Circuit with ‘certain di-
rected modifications. Clark v. Board of Educ. of Little Rock, supra.
* Citations are to the Joint Appendix below.
6
After further proceedings, the district court approved a
geographic zoning plan submitted by the board.
The Little Rock School District
At the present time there are five high schools, seven
junior high schools, and thirty-one elementary schools
(Defendants’ Exhibit No. 24, p. la infra)® in the Little
Rock School District, which served an estimated 1969-70
student enrollment of 15,377 white students and 8,281
Negro students (Defendants’ Exhibit No. 25, p. 3a
infra). As the Court of Appeals noted in its opinion (See
Appendix to Petition for Writ of Certiorari, p. A-6), the
district generally forms an irregular rectangle with the
longer side running from east to west along the Arkansas
River. The most prominent exception to this pattern is
the extension of the district in two finger-like projections
at its northwest end. These have resulted from the district’s
annexation, since 1956, of the white residential subdivisions
of Walton Heights and Candlewood. Between the two “fin-
gers” lies a Negro residential area known as Pankey (A.
485-509).
Since 1956 the district has expanded almost exclusively to
the west.® ()f thirteen new school facilities opened since
5 See note 2 supra.
6 Expansion of the district has not benefited both white and Negro
citizens of Little Rock. Various urban renewal projects since 1954
have eliminated areas of Negro residences near the present Hall
High School (A. 289), and in Pulaski Heights (A. 290-91). Of
more than one hundred and seventy-five subdivisions developed in
Little Rock between 1950 and 1968 ( Plaintiffs’ Exhibit No. 4), only
two—Granite Mountain and University Park—have Negro res-
idents (A. 746). On the other hand, William Meeks, a member
of the Little Rock School Board and Little Rock “Realtor of the
Year” in 1967, testified of discrimination against Negroes in the
sale of housing (A. 743-44). He said that he knew of no Little
Ma DP BR Sb
7
that year, only three have been located in the east-central
section of the city: Booker Jr. High, Ish and Gillam Ele-
mentary Schools. All were named for prominent Negroes
(A. 473, 482); all were initially opened as Negro schools
(A. 473, 477, 482) with all-Negro faculties (Ibid).
On the other hand, the district built nine schog]s? in West-
ern Little Rock between 1956 and 1969: Parikview High
School, Henderson Junior High and Southwest Junior
High Schools, Bale, McDermott, Romine, Terry, Western
Hills and Williams Elementary Schools. In each instance,
these schools were initially filled with an all-white faculty
(A. 154) and they have remained identifiable: as “white”
schools.
The district court accepted “as obvious the proposition
that the Little Rock District located new schhools in the
center of concentrations of one race and limitecd the capac-
ities of those schools to service only that partticular com-
munity” (A. 155-56). Faculty assignments to tthese schools
were then based on the racial composition of thhe neighbor-
hood (A, 153). Schools built since. 1956 h ,
nearly all-white or all- Negro (Ae 158); they. been either
been located so as to promote desegregation and achieve-
iment of a unitary school system (A. 476, 486, 5008), although
the district has been aware since 1956 of the trrend of popu-
lation movement, including the tendency of whhites to move
Rock realtor, even up to the time of the hearing in this case, who
would knowingly sell a lot in a “white” subdivisioon to a Negro
(A. 294). Newspaper advertisements reflecting listinggs of sale prop-
erty by race were also introduced in evidence (Plajintiffs’ Exhibit
No. 3).
"The thirteenth facility opened since 1956 was; Metropolitan
High School, a vocational-technical school serving bo?th Little Rock
and the Pulaski County Special School District, It jis located out-
side the district’s boundaries.
PS IRON TIE TER AYN LOG TINE” ATE IL 8 OO TIE AN IE COTE
8
west and of Negroes to remain in the center or castern
section of the city (A. 286-296, 637).°
§ Between 1956 and 1969 there were many instances of specific
actions taken by the district which developed or reinforced the
racial identifiability of its schools:
Bale and Williams Elementary schools were constructed prior
to 1961 in all-white neighborhoods and staffed with all-white facil-
ities.
In 1961, the district decided to “convert” the previously all-white
Rightsell elementary school to an all-Negro school in order to
relieve overerowding at nearby all-Negro elementary schools. No
consideration was given to the possibility of operating all schools
in the area on an integrated basis (A. 166-67; Safferstone V.
Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962) ).
In 1963-64, while Henderson Junior High School was under con-
struction, white pupils living in the far western section of the
city were transported by school district bus past West Side and
Dunbar Junior High Schools to attend the previously all-white
East Side Junior High (A. 171). No attempt was made to bus
these students to the nearest “neighborhood school” and/or to in-
tegrate Dunbar. When construction of Booker Jr. High was com-
pleted and East Side closed, however, only the Negro East Side
students were assigned to Booker; the white students went to West
Side (A. 478). Booker also drew students from overcrowded Dunbar
Jr. High (A. 496). Thus, the district did not make use of an op-
portunity presented to it in 1964-65 to disestablish the identities
of West Side and Henderson as white junior high schools and
Booker and Dunbar as Negro junior high schools.
j “+ 2000 Fe at. YS atie awonod Ailiam Flementary Sehool. located
in an all-Negro area, as a Negro school with an all-Negro faculty
(A. 473). Gillam was constructed nearly adjacent to the existing
Negro Granite Mountain Elementary School. Both schools are pres-
ently operating under capacity, but when the district contemplated
construction of Gillam, no consideration was given either to ex-
panding existing capacity at other elementary schools or to locating
a new facility so as to promote desegregation (A. 474).
In 1965 another primary school named for a Negro citizen was
opened with an all-Negro faculty—Ish Elementary School (A. 481-
52). At the same time, all-Negro Capital Hill Elementary School
was closed and its students assigned to other all-Negro schools, in-
cluding Ish, rather than to nearby white elementary facilities (A.
482). Although the district was supposed to be operating under
freedom of choice at the time, see Clark v. Board of Educ. of Little
Rock, supra, 369 F.2d at 665, students assigned to Ish were not
afforded a choice of schools until the district was ordered to permit
9
The Oregon and Parsons Plans
Tn 1966, the school board contracted with a team from
the University of Oregon to prepare a long range plan of
desegregation for he district (A. 61-62). The findings of
that team were reported in early 1967 and became known
as the “Oregon Report” (Defendants’ Exhibit No. 7). Ba-
choice in Byrd v. Board of Directors of Little Ruck School Dist.,
Civ. No. LR 65-C-142 (E.D. Ark. 1965).
When all-Negro Pfeifer and Carver schools became overcrowded,
the district did not offer Negro students a second choice of schools
(A. 315-16), but moved portable classrooms to the site to expand
the eapacity of the schools and contain the Negro student popula-
tion (A. 498-99). In contrast, Hall High School was declared over-
In addition to staffing new schools with all-white or all-Negro
faculties, the district hired teachers on a strictly racial basis
through 1964-65 (A. 28) ; thereafter, all attempts to achieve fac-
ulty integration were on a purely voluntary basis only (A. 255).
And prior to July 1968, except for two white principals at Negro
schools, the district maintained a racial allocation of principalships,
with white principals at traditionally white schools and Negro
principals at “Negro” schools (A. 121-22),
In 1966, the district purchased a school site in Pleasant Valley,
the racial composition of the neighborhood or the past history of
Segregation (A. 486). Any school constructed on the site (there is
still a sign announcing that a school will be built on the site) would
be all-white; were Pleasant Valley, Walton Heights and Candle-
wood subdivisions not within the Little Rock distric*. the closest
school a be a predominantly Negro school in the Pankey area
Finally,—and this list is by no means exhaustive of the means
by which this district maintained the Segregated character of its
system—the school district undertook to build a new senior high
school ( Parkview) in the far western section of the city in 1967
ow at a
10
sically, the report recommended abandonment of the neigh-
borhood school concept and restructuring of the district’s
schools through a capital building program combined with
pairing to create an educational park system (/bid). The
cost of implementing the “Oregon Report” in its entirety
was estimated to be some ten million dollars; however, as
the chief author and director of the study (Dr. Goldham-
mer) explained, much of this amount would have had to be
expended for building replacement and remodeling anyway
(A. 367). The Oregon Report would also have required a
transportation system for the school district (/bid).
Following issuance of the Oregon Report, a school board
election was held in November 1967. Two incumbent mem-
bers of the board who supported the recommendations of
the Oregon Report were replaced by candidates who cam-
paigned against it (A. 416-18), and the vote was interpreted
as an indication (a) that the public would not support
implementation of the recommendations, and (b) that the
public would not vote bond monies or tax levies sufficient
to implement them.
The school board then directed the Superintendent and
his staff to prepare their own recommendations of a deseg-
regation plan for Little Rock (A. 69). The Superintendent’s
proposals quickly became known as the “Parsons Plan”
(A. 70). The Parsons Plan proposed measures to deseg-
regate Little Rock high schools and two groups of elemen-
‘ry schools, but made no proposals for other elementary
schools or for junior highs. In March 1968, the board placed
a $5 million bond issue for implementing the Parsons Plan
on the ballot (A. 73-74). The millage increase for the bonds
was rejected (A. 75) and again, candidates favoring no
change in the status quo defeated incumbents who sup-
ported the Superintendent’s plan (A. 180-81. See also, A.
417-21).
oe
2d! as eel a tee 5S 5, 6 ne
ii
Camrt of Appeals
Atter the seus) district bad responded to the Motion
foc Purther Bele the district court set a bearing for
Augue 15, 14% end euggesied that the Board devise a
SouErepiut woe pian A 222). The district did present
& SevErepiue etieudens zone plan et the August hearing
4. 7%). However, thie plan was characterized as an “in-
term” memeure A 220, whieh reguired further study (A.
21): the chetract oppused making avy change from freedom-
otis for 1H0E-49 and the peering was limited to whether
Or Iti 2 suctt ougnt to te reguired for 1968-69. After the
wenme Gey of testimony. the bearing wae recessed in order
ty allow the district to develop and present a final plan
tumbguetely cisestavlieh tue dua] system effective with
te THRO chou] reer (A 402-06). That plan was sub-
mutied Movember 15, 196 (A 405d 405g).
ASbonrk cost wet 2 mejor factor im the decision to
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16
Fewer Negro students would attend predominantly white
schools under the zoning plan than had been enrolled in
such schools under freedom of choice (A. 534-35); there
would be “very little” integration under the zoning plan
(A. 162) since the zones were drawn in a manner that al-
lowed schools to remain all-white and all-Negro (see A.
434).
Most of the witnesses at the hearing agreed that the
Parsons Plan was a better integration plan, albeit incom-
plete, than the board’s zoning proposal (A. 129 [superin-
tendent Parsons], 194 [Board President Barron], 298-99
[Board member Meeks], 678 [Dr. Dodson], 819 [Dr. Gold-
hammer, principal author of the Oregon Report]). The
Superintendent also testified that various zones drawn in
the board’s plan, such as those for Gillam Elementary and
Hall High Schools, did not further the goal of integration
(A. 158). From his study of the board’s proposals, Dr.
Goldhammer concluded that they did not provide for a
unitary school system, and would not be an improvement
over free choice (A. 381-82).
Alternatives Available to the District
Plaintiffs’ expert witness Dr. Dodson said that the zones
froze in the segregated character which the schools had
developed in the past (A. 686). He recommended imple-
mentation of a plan not based on the neighborhood school
concept (A. 673-74). He traced the origin of the concept
to the “common school” notion at the base of public educa-
tion (A. 658-59) but said that the neighborhood school had
become “fa place where people who are more privileged try
to hide . . . and it’s been made sacred in recent thinking
about in proportion as Negroes get close to it. It has be-
come an exclusive device, that is the opposite of the com-
17
munity school” (A. 659). Dr. Dodson pointed out that in
a city with racially segregated housing patterns, effective
desegregation could not be accomplished if the neighbor-
hood school concept were adhered to (A. 673-74). Only by
eliminating the racial identities of the schools and allowing
them to take on new identities as common schools could an
integrated unitary system be achieved (A. 681-82). He dis-
cussed alternative approaches used in other districts (A.
674-76). He was of the opinion that if Little Rock’s high
schools were to be zoned to desegregate them, the zones
should have been drawn from east to west as in the Parsons
Plan (A. 678).
Dr. Goldhammer testified that the initial study of the
Little Rock School District by the team which drafted the
Oregon Report demonstrated that the district’s progress in
eliminating the dual system was much slower than could
have been expected; that considering the rapid growth in
enrollment in the school system, free choice would never
have worked (A. 357-59). Whereas the board’s plan pro-
posed to zone all schools, the University of Oregon team
had concluded that in a residentially segregated commu-
nity such as Little Rock, no single approach would do the
entire job of conversion to a unitary system (A. 365). The
Oregon team’s recommendations therefore incorporated
several different features: a capital construction program
to develop educational parks and larger attendance cen-
ters, pairing some schools and a busing system of student
transportation (A. 365-67). Although the report carried
a cost estimate of $10 million, this price included consider-
able replacement or modernization of facilities which would
have had to be carried out irrespective of any desegrega-
* Superintendent Parsons stated that he had never expected
white students to choose identifiably Negro schools under freedom
of choice (A. 330-31).
18
tion plan (A. 367). The cost of coming as close to the
Report as possible without abandoning or remodeling build-
ings would require less than $500 thousand, for busing,
inservice training and compensatory education programs
(A. 368-69).
Dr. Goldhammer said that the Parsons Plan, the Oregon
Report and the “Walker”’® plan were each better means
of desegregating the schools than the board’s zoning pro-
posals (A. 399, 819). (He estimated that the “Walker”
plan would be the least expensive to implement, E.. 821).
The Board President, also, was of the opinion that these
plans would result in more integration in the Little Rock
public schools than would be accomplished undgr the zoning
plan. They would thus eliminate the racial identifiability
of the schools, something which the zoning plan would fail
to achieve (A. 762. See also, A. 298, 636).
The district rejected these alternatives because they each
required expenditure of funds which Little Rock voters
had demonstrated, by their votes on the bond issues, that
they would not provide (A. 334, 337-40, 415-23, 428, 456,
653-54). The Superintendent said, in fact, that the com-
munity had “turned down every educationally desirable
plan and now we are left with only zoning as a feasible
plan” (A. 556-557). Some funds were available to the dis-
trict, however, including State monies for a transportation
system (A. 341-43, 641-46) and Dr. Goldhammer suggested
that funds might have to be diverted in order to accom-
plish unification of the system (A. 821).
The District Court approved the Board’s zoning plan.
The Court of Appeals held that action was error.
1° A plan developed by a group of Negro citizens and organiza-
tions which combined grade restructuring, pairing and transporta-
tion with recommendations for future development of larger, more
centralized attendance centers.
19
ARGUMENT
As we read the Petition, the Little Rock School Board
urges review of the decision below on two major grounds:
that the Eighth Circuit has required Little Rock to abandon
the “neighborhood school” method of assignment, and that
the Courts of Appeals are divided in their interpretations
of this Court’s school desegregation decisions.
Petitioners assert (p. 11) that
[t]he effect of the majority opinion below is to deny
to the Little Rock School District the right to assign
its public school students as they are assigned, and
have been for decades, by the vast majority of the
nation’s school districts.
The fact is that “neighborhood schools” have been paid lip
service only, and not much more, not only in Little Rock
but throughout most of the country. See Weinberg, Race
and Place—A Legal History of the Neighborhood School
(U.S. Gov’t Printing Office, Catalogue No. FS 5.238 38005,
1967). When “neighborhood schools” would have meant
integrated schools, this school system was unwilling to draw
geographic attendance zones.
Petitioners correctly state that when this litigation was
begun plaintiffs suggested the remedy of attendance zoning.
That remedy would have meant desegregation so the school
district opposed it while it built white schcols in western
Little Rock. However, to say, as petitioners do (p. 7), that
when zoning was adopted in 1969 “plaintifis achieved the
basic relief they had earlier sought in the suit” is to con-
fuse form with substance. Surely the majority of the Court
of Appeals was correct in not assigning any magic value to
“neighborhood schools” but investigating whether there
would be integrated schools.
20
No other Court of Appeals would have approved the
Little Rock plan.“ In an opinion remarkably similar to
that below, for example, the Tenth Circuit has recently
held:
The attendance zones as originally formulated were
superimposed upon racially defined neighborhoods and
were, therefore, discriminatory from their inception
[citing Brewer v. School Bd. of City of Norfolk, 397
F.2d 37 (4th Cir. 1967)]. ... Similarly, the pattern
of new school construction has preserved, rather than
disestablished, the racial homogeny of the Tulsa at-
tendance zones.
As conceived and as historically and currently admin-
istered, the Tulsa neighborhood school policy has con-
stituted a system of state-imposed and state-preserved
segregation, a continuing legacy of subtle yet effective
discrimination.
United States v. Board of Educ., Independent School Dist.
No. 1, Tulsa, No. 338-69 (10th Cir., July 28, 1970).
11 Virtually every district court opinion which petitioners claim
(Petition, pp. 13-14) evidences confusion about the meaning of this
Court’s decisions has been reversed, and appropriate guidelines
given by the Courts of Appeals. Bivins v. Bibb County Bd. of Educ.
and Thomie v. Houston County Bd. of Educ., No. 29,121 (5th Cir.,
February 5, 1970) ; Hilson v. Ouzts, No. 28491 (5th Cir., April 3,
1970) ; United States v. State of Georgia, No. 29067 (5th Cir.,
June 18, 1970) (permitting intervenors to contest adequacy of
desegregation formulas and suggesting their facial invalidity) ;
Brewer v. School Bd. of City of Norfolk, No. 14,544 (4th Cir., June
22, 1970), cert. denied, 38 U.S.L.W. 3522 (June 29, 1970). The
Northcross decision cited by petitioners was reversed by this Court,
397 U.S. 232 (1970). In Graves v. Board of Educ. of North Little
Rock, where the parties are represented by the same counsel as in
this litigation, it was agreed that plaintiffs’ appeal be dismissed on
the condition that further proceedings in the district court would
be governed by the outcome of the Little Rock appeal.
21
The Fourth Circuit since 1968 has consistently held that
“neighborhood schools” cannot abort the constitutional im-
perative. Brewer v. School Bd. of City of Norfolk, supra;
Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 14,517
(4th Cir., May 26, 1970), cert. granted on other issues, 38
U.S.L.W. 3522 (June 29, 1970).'?
The Fifth Circuit has approved plans which it views as
preserving “neighborhood schools” only where such plans
establish unitary school systems; no plan has been approved
which results in as little actual desegregation as Little
Rock’s. E..g., Ellis v. Board cf Public Instruction of Orange
County, 423 F.2d 203, 208, n. 7 (5th Cir. 1970) (“Under
the facts of this case, it happens that the school board’s
choice of a neighborhood assignment system is adequate to
convert the Orange County schoo] system from a dual to a
unitary system”); Andrews v. City of Monroe, No. 29358
(Sth Cir., April 23, 1970) (typewritten slip opinion.at p. 4:
“However, we do not reject the School Board’s plan solely
on the ground that it does not fit the Orange County defini-
tion of a ‘neighborhood’ system. Even if, as presently
constituted, the plan were a true neighborhood plan, we
would reject it because it fails to establish a unitary sys-
* “The District Court should not tolerate any new scheme or
‘principle,’ however characterized, that is erected upon and has the
effect of preserving the dual system. This applies to the ‘neighbor-
hood school’ concept, a shibboleth decisively rejected by this court
22
tem.”) ; Mannings v. Board of Public Instruction of Hills-
borough County, No. 28643 (5th Cir., May 11, 1970).**
Finally, the Sixth Circuit has recently rejected the argu-
ment that zoning is per se constituticnal.
The District Court, in examining the record before it,
has apparently determined that revision of the atten-
dance zones is necessary to insure the Board’s compli-
ance with its affirmative duty to disestablish segrega-
tion with a plan which “promises realistically to work
now.” There is nothing in the record, including the
failure of the prior reviewing courts to disturb the zon-
ing, which would justify disturbing the District Court’s
determination. Nor does the absence of a finding that
the present zones were racially gerrymandered or that
the Board acted in bad faith preclude the District Court
from ordering this remedial relief. Green v. County
School Board, supra, at 439; Jackson v. Marvell School
District No. 22, 416 F.2d 380, 385 (8th Cir. 1969);
Henry v. Clarksdale Municipal Separate School Dis-
trict, 409 F.2d 682, 684 (5th Cir.), cert. denied, 396 U.S.
940 (1969).
The Board’s assertion that the District Court’s order
requiring revision of the zones was designed to achieve
a predetermined racial balance [footnote omitted] in
13 In noting our view, based on our reading of the decisions, that
none of the Courts of Appeals would have affirmed the district
court’s acceptance of the Little Rock zoning plan, we do not mean
to suggest agreement with the Fourth Circuit’s limitation of remedy
by its “reasonableness” doctrine, see Petition for Writ of Certiorari.
Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 281, O.T. 1970,
cert. granted, June 29, 1970, 38 U.S.L.W. 3522, or with the Fifth
Cireuit’s use of the “neighborhood school” doctrine to justify a
lesser number of segregated schools in a district than Little Rock’s
plan would have produced, see Petition for Writ of Certiorari,
Davis v. Board of School Commr’s of Mobile, No. 436, O.T. 1970.
23
the schools in violation of section 407(a)(2) of the
Civil Rights Act of 1964 (42 U.S.C. § 2000c-6) is also
without merit... .
Monroe v. Board of Comm’rs of Jackson, No. 19720 (6th
Cir., June 19, 1970) (slip opinion at pp. 0-6). See also,
Kelley v. Metropolitan County Board of Educ. of Nashviile,
Civ. No. 2094 (M.D. Tenn., July 16, 1970).
This matter is best put in its proper perspective by ex-
amining what the Court of Appeals did, and not what peti-
tioners say it did! Little Rock’s plan was not rejected
because “several” (Petition, p. 8) schools remained racially
identifiable. Compare Appendix to Petition, pp. A-15 to
-16, pp. 13-15 supra. It was rejected because it effected
at most a de minimus change in the patterns of racially
segregated school attendance which characterized the dual
system in Little Rock. All that has been decided is that
“desegregation” plans which don’t work are not constitu-
tional; racial balance has been neither required nor pro-
hibited. The arguments of Petitioners are thus much like
those made three years ago by school boards when the Fifth
Circuit indicated that free choice plans would not be in-
definitely approved if they failed to produce integration.
Caddo Parish School Bd. v. United States, 389 U.S. 940
(1967).
The decision below is completely in accord with the spirit
of Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968), where in the context of free choice this
Court refused to view any particular method of desegrega-
tion as sacrosanct, emphasizing instead the result. The
Court of Appeals properly concluded that “geographic
attendance zones . . . must be tested by this same standard.”
(Appendix to Petition, p. A-14). Petitioners attempt to
circumvent application of so pragmatic a test to their zon-
24
ing plan by interpreting Brown v. Board of Educ. to have
sanctioned attendance zoning for all time.
This Court in Brown recognized geographic districting
as the normal method of pupil placement and did not
foresee changing it as the result of relief to be granted
in that case. ... the original command of Brown that
public school systems must operate free from racial
classifications has not been altered by this Court’s sub-
sequent decisions in the matter. This was confirmed
as recently as Alexander v. Holmes County Board of
Education, 396 U.S. 19 (1969), in which this Court said
it was the constitutional duty of every school district
to operate “school systems within which no person is
to be effectively excluded from any school because of
race or color.”
(Petition, pp. 11, 16). Even if this Court in Brown had
viewed zoning as a sufficient remedy in the cases before it
(perhaps in all cases) and had not foreseen changing it,
we think it is also fair to say that this Court anticipated
compliance with its decision rather than the fourteen years
of evasion and continued discriminatory practices which
mark this case. “Defendants contend that they have ex-
cluded no one from any school, but they are still effectively
operating dual schools.” Christian v. Board of Educ. of
Strong, Civ. No. ED-68-C-5 (W.D. Ark., Dec. 15, 1969).
One final argument of the Petitioners deserves note. They
seek to characterize a school district’s choice of the zoning
attendance assignment method as an innocent choice, which
may produce racially identifiable schools only “[b]ecause
of the tendency of the people in this country, north, south,
east or west, to reside in those areas of a city populated
14 As noted above, geographic zoning in Little Rock in 1956
would have meant desegregation. See p. 19 supra.
25
by other citizens of their race”. . .” This pernicious argu-
ment is, first, totally unsupported by any evidence in this
record. In fact, this record contains uncontradicted evi-
dence to the contrary concerning racial discrimination
which is pervasive in Little Rock (A. 294, 743-44, Plaintiffs’
Exhibit No. 3; cf. A. 289-91, 746). Second, petitioners’ bald
assertion is rebutted by innumerable studies by govern-
mental bodies., Racial Isolation in the Public Schools, A
Report of the U.S. Commission on Civil Rights 201-02, 254,
Legal Appendix at 255-56, and private authors, e.g.,
Abrams, Forbidden Neighbors 233 (1955); Weaver, The
Negro Ghetto 71-73 (1948). Third, it is disproved by re-
cent affirmative action of the Congress, Fair Housing Act
of 1968, 42 U.S.C.A. §4§ 3601 et seq. (Supp. 1970). Finally,
it ignores the very real complicity, through site selection,
staffing, etc., of the school district in the existing pattern
of racially identifiable schools. See the opinion below,
Appendix to Petition, pp. A-15 to A-16, nn. 19-22 and ac-
companying text. “The question is no longer where the
first move must be made in order to accomplish equality
within our society; the question has become and possibly
always has been who has the power and duty to make those
moves so as to advance the accomplishment of that equal-
ity.” Davis v. School Dist. of City of Pontiac, 309 F. Supp.
734, 742 (E.D. Mich. 1970).
This case is an inappropriate one for review, then, be-
cause (1) there is no difference of opinion between the
various Courts of Appeals on the constitutionality of a
zoning plan which produces as little real desegregation as
Little Rock’s; (2) the opinion below neither forbids “neigh-
borhood schools” nor mandates “racial balance” in the pub-
lic schools—it is the rejection of a specific plan evaluated
in the context of the specific factual circumstances of this
district; (3) the Court was clearly correct in insisting that
26
desegregation plans achieve desegregation in order to win
judicial approval. This school district’s distortion of Brown
v. Board of Educ., supra, is deserving of no less rapid dis-
patch by this Court than the similarly twisted interpreta-
tion of that decision offered by the Norfolk School Board.
(Review of the Fourth Circuit’s rejection of their theory
was denied by this Court one week after the Court of Ap-
peals’ decision). At best, this case is one for summary
affirmance.
CONCLUSION
WuererorE, Respondents respectfully pray in light of
the foregoing that the writ be denied.
Respectfully submitted,
JoHn W. WALKER
Waker, Rorenserry, Kapuan,
LavEy anD HoLLINcsworTH
1820 West Thirteenth Street
Little Rock, Arkansas 72202
JacK GREENBERG
James M. Napsrit, III
Norman J. CHACHKIN
10 Columbus Circle
New York, New York 10019
Attorneys for Respondents
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